Judge Cabell. The appellant was a slave in Maryland, and
was purchased there as such by the appellee, but now
claims her freedom under the second section of our act of
assembly, passed the 17th of December, 1792, which establishes,
as a general rule, "that slaves, which shall hereafter
be brought into this commonwealth, and kept therein one
whole year, or so long, at different times, as shall amount
to one year, shall be free."

It being admitted by the parties that the appellant has
been brought into this state since that law took effect, it is
obvious that her right to freedom is thereby established,
unless the appellee can show that this case comes within
some of the exceptions contained in the act of assembly.
He relies, for this purpose, on the 4th section, which declares
"that nothing in this act contained shall be construed
to extend to those who may incline to remove from any of
the United States, and become citizens of this, if, within
sixty days after such removal, he or she shall take" a certain
oath therein prescribed.

But it is evident that the privilege conferred by this
clause, of bringing slaves into this commonwealth, can be
claimed by those persons only, who, at the time of their
removal, were citizens, not of this, but of some other state,
and as it is admitted that the appellee was a native of this
state, the question arises, whether he had laid aside the
character of citizenship thereby acquired, so as to entitle
himself to the benefit of this proviso.

Nature has given to all men the right of relinquishing
the society in which birth or accident may have thrown
them; and of seeking subsistence and happiness elsewhere;
and it is believed that this right of emigration, or expatriation,
is one of those "inherent rights, of which, when they
enter into a state of society, they cannot, by any compact,
deprive, or devest their posterity." But, although municipal
laws cannot take away or destroy this great right, they
may regulate the manner, and prescribe the evidence of
its exercise; and, in the absence of the regulations juris
positivi, the right must be exercised according to the principles
of general law. As we have no act of congress on this
subject, and as doubts are entertained whether our act of
assembly concerning expatriation is still in force, or, admitting
it to be in force, whether it was ever intended to
apply to the case of a citizen of Virginia, removing to, and
becoming a citizen of, some other of the United States, I
shall, in considering M'Carty's citizenship, confine myself
to the principles of general or universal law: and I am
clearly of opinion, that, even according to those principles,
his removal from this state, under the particular circumstances
of this case, would not amount to an expatriation.
A temporary absence will not devest a man of the character
of citizen, or subject of the state, or nation to which he
may belong. There must be a removal with an intention to
lay aside that character, and he must actually join himself
to some other community. The intention to abandon this
state is not proved by any other evidence than the declarations
of M'Carty himself; and, although this is one of
those cases in which a man's own declarations will be received
in his favour, yet, in the present instance, they are
contradicted by his own acts, and thereby lose all their
weight; for he left his property behind him, and continued
to exercise the most important right of a citizen of this
state, by voting at the election of the representatives of the
people. I do not mean to say that a citizen of this state
cannot become a citizen of another state, without carrying
his property with him; for, although that would be required
according to the principles of general law, it is dispensed
with under our particular system, which provides
that "citizens of each state shall be entitled to all privileges
and immunities of citizens in the several states." I have
mentioned the circumstance of his leaving his property, to
show, with the aid of other testimony, that he did not intend
to cease to be a citizen of this state. But, although the
constitution of the United States has wisely given to a citizen
of each state the privileges of a citizen of any other
state, yet it clearly recognizes the distinction between the
character of a citizen of the United States, and of a citizen
of any individual state; and also of citizens of different
states; and, although a citizen of one state may hold lands
in another, yet he cannot interfere in those rights, which,
from the very nature of society and of government, belong
exclusively to citizens of that state. Such are the rights of
election and of representation; for they cannot be imparted
to any but citizens, without a subversion of the
principles of the social compact. When, therefore, I perceive
M'Carty in the exercise of those rights, I am disposed
to consider it as rightful, rather than wrongful; which,
however, can only be on the idea that he has not relinquished
his citizenship. But, admitting him to have intended
to abandon this state, he has not executed that intention
by attaching himself to another. He made no
settlement; he paid no taxes; in fact, he claimed none of
the rights, and performed none of the duties, of a citizen
of Maryland. He was "a mere sojourner in the land," retaining
his character of citizen of Virginia, and, therefore,
not entitled to the benefit of a proviso, which, from its very
terms, is applicable to those persons only who are not citizens.
If mere residence in another state, by a citizen of this
state, residence undefined as to object, intention, or duration,
shall entitle him, on his return, to bring with him as
many slaves as he may think proper, how vain and nugatory
is the law which affects to prevent their farther importation.

I wish it to be distinctly understood, that my opinion
that M'Carty never ceased to be a citizen of Virginia, and
that, therefore, he could not bring his slaves with him on
his return, has not been influenced by the circumstance of
his having failed to comply with the requisites of our act
of assembly concerning expatriation. The view I have
taken of the subject has rendered any consideration of that
act totally unnecessary. My opinion is founded solely on
the impression that, according to the principles of general
law, there is not sufficient evidence to prove, 1st. His intention
to quit this state; and, 2d. The execution of that
intention by his departing out of this commonwealth, and
becoming a citizen of Maryland. Had there been sufficient
evidence on these points, it might then have become necessary
to inquire, whether he ought not, nevertheless, to
be considered as a citizen of this state, inasmuch as he had
omitted to relinquish that character in the manner prescribed
by our act concerning expatriation. But we should
have been there met by the previous and important question,
whether, as the principal part of that act is taken up
in declaring the mode in which aliens may become citizens,
the particular part relating to expatriation was not intended
to point out the mode in which citizens might become
aliens: and if so, whether that act can be made to
apply to the case of a citizen of Virginia, who leaves this
state and becomes a citizen of some other of the United
States; the citizens of the other states, although contradistinguished
from citizens of this state, not being aliens with
respect to this state, inasmuch as both the articles of confederation,
and the constitution of the United States, entitle
them to the privileges and immunities of citizens of
this state. If arguments drawn from the long and uniform
practice of a country are ever allowed to have any influence
on a question concerning the construction of its laws,
they might here be urged with much force. For, of the
innumerable emigrants from Virginia, who have overspread
the southern and western states and territories, and
filled their highest offices, it is believed that not one has
ever deemed it necessary to conform to our act concerning
expatriation. Are they still citizens of this state? But we
should also have to encounter another previous question.
Admitting it to have been the intention of our legislature
to give to our act of assembly the most extensive application;
does the power to regulate the right of expatriation
still belong to the state governments, or does it belong to
congress, as incident to the power of naturalization, the
power of declaring who shall be citizens? I give no decided
opinion upon either of these important questions; but I
deem it not improper to state it as my present impression,
that, if a citizen of Virginia shall have departed out of this
commonwealth with an open and avowed, fair and bona
fide intention of quitting it, and of becoming a citizen of
some other state, and shall, in fact, have become a citizen
thereof, that, from thenceforth, he ceased to be a citizen
of Virginia, notwithstanding he may have omitted to comply
with the requisites of our expatriation act: and that,
should he thereafter be "inclined to remove" from his
newly adopted state, and again "become a citizen of this,"
he will be allowed to bring his slaves with him, "if within
sixty days after such removal" he shall take the oath prescribed
by law. But as to the particular case now before
the court, M'Carty never ceased, on any principle, to be a
citizen of Virginia, and had no right to bring slaves into
this state. The appellant, Nancy Murray, was, therefore,
brought here contrary to law, and having been kept here
one whole year, is entitled to her freedom; and the county
court ought so to have instructed the jury. I am, consequently,
of opinion that both judgments be reversed, and
that the cause be remanded to the county court for a new
trial to be had therein, with directions to the court, to instruct
the jury accordingly.

Judge Roane. It was decided by the supreme court of
the United States, in the case of Scott v. Negro London, (3
Cranch, 324,) that the removal by the master, and the importation
of the slave, need not be cotemporaneous and
concomitant. I am inclined to concur in that construction
of the act in question: but that point is not necessary to be
now decided in the view I have taken of the subject.

The next question is, whether the appellee is a person
coming within the meaning of the proviso of the act upon
this subject. That act declares, that slaves thereafter
brought within the commonwealth, and remaining there
one whole year, shall be free: to which penalty upon the
importer, is added another of a pecuniary nature. The object
of the law was, to prohibit the great political evil of
introducing more slaves into the commonwealth: but as
this prohibition, extended to all possible cases, might be
too rigid, and as it was also a favourite policy with the legislature
to increase the number of our citizens, the general
object of the law was relaxed and given up, in consideration
of the latter benefit, in favour of the persons, and
under the circumstances, embraced by that proviso. That
proviso, however, does not extend to those who are already
citizens of this commonwealth. I infer this, 1st. Because
that idea is reprobated by the limitation, in the proviso,
to those who shall "remove" from any of the United
States, "and become citizens of this;" and, 2d. Because, in
the latter part of the same proviso, the case of "citizens of
this commonwealth" is taken up, and the privilege of importation
is confined, as to them, to slaves then owned by
them, in any of the United States. This provision defines
the extent of the privilege of citizens of this commonwealth
in this particular; not only by reason of the imperious
words of the first part of the proviso before mentioned,
but also from the rule of construction, as applied
to the last, that expressio unius est exclusio alterius. This
construction results from the express provisions of the act
itself; but, were it necessary, we might, in addition, well
suppose, that the legislature would discriminate, in this
particular, between those who were citizens of this state,
(wherever resident,) and those who were not; and considering
that the animus revertendi probably existed in the
former, (even under any circumstances,) the legislature
might well have concluded, that they would not stand in
need of such inducements to return to the commonwealth,
as those would to remove into it, who had never before
been citizens thereof. In the case of Talbot v. Jansen, in
the supreme court of the United States, it seems to have
been held, that, although an expatriation, under our act,
was conclusive evidence of an intention to relinquish the
right of citizenship, as to the commonwealth of Virginia,
and, by Judge Iredell, (the other judges saying nothing on
that point,) was the only evidence of such intention; or, in
other words, that a citizen of Virginia cannot expatriate
himself therefrom, "in any other manner;" yet that, quoad
the United States, a residence in, and even a swearing allegiance
to, another country was equivocal; for that a man
may, at the same time, enjoy the rights of citizenship in
two or more governments, and that, therefore, even under
those circumstances, the absent citizen would not be construed
to have expatriated himself, or to have renounced
forever his intention to return to his country. These considerations
entirely justify the omission, by the legislature
of Virginia, to extend the invitation in question to her absent
citizens also; although, at first view, the reason of the
two cases might appear to be the same. The question is
therefore narrowed to the single point, whether the appellee
had ceased to be a citizen of the commonwealth of
Virginia at the time of the importation in question: it is
not enough that he was a citizen of any, or every other
state in the union if he were then also a citizen of Virginia:
I mean a citizen of Virginia in a particular and limited
sense, as contradistinguished from the general privilege
conferred, by the constitution, upon the citizens of each
state in every other state.

That there is both a general and a particular sense in
which this relationship of a citizen is contemplated in our
country, is evident from the constitution itself, which
speaks of "citizens of different states" (inter alia) in the
judicial article; from various acts of congress, and judicial
decisions on the same subject; and from the consideration,
that a contrary idea would savour too much of consolidation,
as throwing out of view the particular sovereignties
of which the American confederacy is composed. We are
told by Judge Paterson, in the aforesaid case of Talbot v.
Jansen, and I entirely subscribe to the doctrine, that the
situation of America, in this particular, is new, and may
produce new and delicate questions; that we have sovereignties
moving within sovereignties; that allegiance to a
particular state is one thing, and that to the United States
is another; that a renunciation of the former allegiance
does not draw after it a renunciation of the latter; and that
a statute of the United States, on the subject of expatriation,
is much wanted. If, under the non-existence of such
a statute of the United States, the strong facts of a permanent
residence in, and swearing allegiance to, another
and a foreign country, were deemed equivocal, in that
case, and as not necessarily importing an expatriation
from the government of the United States, much less will
the weaker and more equivocal facts existing in the case
before us, be construed to have that effect, in relation to
the commonwealth of Virginia; in which state, also, there
being a statute upon the subject of expatriation, a noncompliance
with the requisitions thereof will proportionally
weaken the inference of an intention to expatriate.
The facts stated in the case before us, at most, show only
a temporary residence in Maryland, and, at one time, perhaps
an intention of permanent residence there; but it is
not only agreed that the appellee did not expatriate himself
from Virginia, in the manner prescribed by our act,
but, also, that he neither purchased permanent property
in Maryland, nor took the oath of allegiance to that state.
This case, therefore, is infinitely weaker than that of Talbot
v. Jansen, in which the party was adjudged to be still a
citizen of the United States, and that, independently of the
strong additional argument derived from the existence of
our act concerning expatriation, and the noncompliance,
with its provisions, on the part of the appellee.

The foregoing ideas, in relation to the connexion between
the United States and the several states, go a great
way to justify the idea, (upon which the general assembly
undoubtedly proceeded, in the case before us,) of a particular
and local citizenship to Virginia, and to the other
states; by which, as the case may be, an exemption from
the penalties of the act will stand or fall.

Whatever the case may be, as to the concurrence of the
powers of the two governments, on the subject of the naturalization
of aliens, and however the construction, on that
subject, is to be adjusted between the respective governments,
on the ground of the principles before adopted
from the opinion of Judge Paterson, (if not of the whole
court,) in the aforesaid case of Talbot v. Jansen; it is clear
to me, that the commonwealth of Virginia has never delegated
to congress the exclusive power to legislate on the
subject of the great natural right of expatriation, as relative
to this commonwealth. Those topics of legislative
power are entirely distinct and unconnected: the one relates
to aliens, the other to citizens; the one to rights to be
acquired, the other to rights to be abandoned; the one to
a political, the other to a natural right. The power of expatriation,
in relation to the commonwealth of Virginia, is
one with which congress had certainly nothing to do; it is
not granted in the instrument of government; and it is a
fundamental principle in our system, that each state retains
every power, jurisdiction, and right, which is not delegated
to the United States by the constitution, nor prohibited
by it to the states. While, therefore, the power of
legislating on the subject of expatriation, from the commonwealth
of Virginia, has not been given up, and ought
not to have been given up, by Virginia, to the United
States; and while the legislature of Virginia has not presumed
to confer this right upon her own citizens, (it being
one of paramount authority, bestowed on us by the God
of Nature,) it is but a small boon to ask, for the legislature
of Virginia, that she should be permitted to set up a criterion
of evidence for her courts, determining when, and
when only, this right shall be adjudged to have been asserted!

By the standard of our act, therefore, on this subject,
this case is to be tested; and I entirely agree with Judge
Iredell in opinion, as aforesaid, that a citizen of Virginia
cannot expatriate himself therefrom "in any other manner."

Of this construction the particular citizens of Virginia
cannot complain; 1st. Because it is the act of their own
government, upon a subject, undoubtedly within its power
and jurisdiction; 2d. Because it is beneficial to all the citizens,
that this great right should be placed upon a foundation
which excludes all possible doubt as to the validity
of its exercise, instead of leaving the matter at large, and
carving out an infinity of litigation and uncertainty, in this
particular; and, 3d. Because the exercise of that right, under
the act, is as free as air, and depends upon volition
only. As for the citizens of other states, it is not for them
to complain, that privileges are denied to the citizens of
Virginia, which are extended to them: privileges, too,
which are granted in consideration of benefits conferred
by them upon the commonwealth, and which it was not in
the power of the other class to confer, they being already
citizens of Virginia.

On these grounds, I am of opinion to reverse the judgment
of both courts, and render judgment in favour of the
appellant, for her freedom.

Judge Fleming. The subject having been nearly exhausted
by my brother judges, my opinion in this important
case will be concise.

The 2d section of the act, passed the 17th of December,
1792, "to reduce into one the several acts concerning
slaves, free negroes and mulattoes," declared in general
terms, that "slaves, which should thereafter be brought
into this commonwealth, and kept therein one whole year
together, or so long, at different times, as should amount
to one year, should be free." The 4th section of the same
act modified this general regulation by certain provisos, or
exceptions. The question then is, has the appellee,
M'Carty, brought his case within any of those exceptions?
And I am clearly of opinion that he has not.

The case of Scott v. Negro London, 3 Cranch, 324,
(which has been cited and much relied on by the counsel
for the appellee,) is essentially different from this case; the
great point of distinction being that, in that case, the true
owner of the slave was a citizen of Maryland who removed
into this state, and within sixty days after his removal, took
the oath prescribed by law; and it was decided that his
rights were not to be affected by the acts of another person,
over whom he had no control, and which were done
without his knowledge or consent; whereas in this case, the
appellee, M'Carty, is, and always has been, a citizen of Virginia,
and evidently appears to have endeavoured to evade
the provisions of the law.

The judgment, therefore, must be reversed, and entered
in favour of the appellant, for her freedom.